State v. Rychard

Opinion

No. 844 September 2, 2026 689

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent,

v.

BRANDON ANDREW RYCHARD,

Defendant-Appellant. Marion County Circuit Court 20CR05581; A185666

Daniel J. Wren, Judge. Submitted April 7, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Oregon Public Defense Commission, filed the briefs for appellant.

Dan Rayfield, Attorney General, Benjamin Gutman, Interim Deputy Attorney General, and Timonthy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Lagesen, Chief Judge, and Egan, Judge.* AOYAGI, P. J. Remanded for resentencing; otherwise affirmed.

______________

* Lagesen, Chief Judge, vice Pagán, Judge.

690 State v. Rychard

AOYAGI, P. J. This case is before us for a second time. Defendant was resentenced after our decision in State v. Rychard, 329 Or App 205 (2023) (nonprecedential memorandum opinion), rev den, 372 Or 290 (2024) (Rychard I). He raises six assignments of error relating to his resentencing.1 The upshot is that defendant contends that Counts 11, 13, 14, and 16 were part of the same criminal episode as Counts 5 and 6, as relevant to consecutive sentencing and the shift-to-I rule. For the reasons explained below, we hold that the sentencing court erred in imposing consecutive sentences for Counts 11 and 13 and erred in not using the shift-to-I rule for Count 14. We remand for resentencing.

Background. Defendant was charged with numerous crimes based on an hours-long ordeal involving M and an act of coercion the following morning. A jury found defendant guilty of two counts of strangulation constituting domestic violence (Counts 5 and 9), three counts of attempted second- degree assault constituting domestic violence (Counts 6, 8, and 10), two counts of fourth-degree assault constituting domestic violence (Counts 11 and 12), one count of menacing constituting domestic violence (Count 13), one count of extortion (Count 14), and one count of coercion (Count 16). In Rychard I, we accepted the state’s concession that, based on the record made at trial, the guilty verdicts for strangulation had to merge into a single conviction on Count 5, the guilty verdicts for attempted second-degree assault had to merge into a single conviction on Count 6, and the guilty verdicts for fourth-degree assault had to merge into a single conviction on Count 11—with the end result that defendant would be convicted of one count each of strangulation (Count 5), attempted second-degree assault (Counts 6), fourth- degree assault (Count 11), menacing (Count 13), extortion (Count 14), and coercion (Count 16). 329 Or App at 207-08. We remanded for resentencing. Id.

On remand, with one exception discussed later, defendant argued that all his sentences should run concurrently because the requirements of ORS 137.123(5) were not 1 Defendant has withdrawn his seventh assignment of error as moot.

Nonprecedential Memo Op: 352 Or App 689 (2026) 691

met, while also pointing out that the shift-to-I rule would apply to any consecutive sentences. The court disagreed, dividing the offenses into three groups, with each group resulting in a 60-month prison term, and each of those 60-month terms running consecutively to one another, for a total 180-month prison term:

• Group I: Strangulation (Count 5), 32 months. Attempted second-degree assault (Count 6), 60 months. Concurrent.

• Group II: Fourth-degree assault (Count 11), 60 months.

Menacing (Count 13), 364 days. Extortion (Count 14), 60 months. Concurrent to each other but consecutive to Counts 5 and 6.

• Group III: Coercion, 60 months. Consecutive to Counts 5, 6, 11, 13, and 14.

The court reasoned that there were “sufficient breaks” for those groupings. As to the extortion and coercion convictions , the court further relied on those offenses causing “completely different harms” than the other offenses. The court did not apply the shift-to-I rule, making a global statement that there was not “continuous and uninterrupted conduct,” in that “it was maybe continuous, but it was interrupted.”

On appeal, defendant challenges the imposition of consecutive sentences and, alternatively, the failure to apply the shift-to-I rule. The state responds that the court did not err or that any error was harmless in that it did not affect the total sentence.

Consecutive Sentencing. Under ORS 137.123(4), a court must impose concurrent sentences “[w]hen a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct ,” unless the court makes special findings under subsection (5), which provides:

“The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

“(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the 692 State v. Rychard

commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”

By contrast, when crimes “do not arise from the same continuous and uninterrupted course of conduct,” the court may impose either concurrent or consecutive sentences. ORS 137.123(2).

“We review a trial court’s decision to impose consecutive sentences for errors of law and to determine whether the trial court’s predicate factual findings are supported by any evidence in the record.” State v. Provancha, 293 Or App 169, 173, 428 P3d 916 (2018), rev den, 364 Or 407 (2019) (internal quotation marks omitted).

On this record, the sentencing court erred in concluding that the Group II offenses (fourth-degree assault, menacing, and extortion) were not part of the “same continuous and uninterrupted course of conduct” as the Group I offenses (strangulation and attempted second-degree assault). Because the state failed to elect specific occurrences of strangulation and attempted second-degree assault at trial, defendants’ merged convictions for strangulation (Count 5) and attempted second-degree assault (Count 6) effectively embraced the entire course of defendant’s hours- long series of strangulations and attempted assaults against M. And the fourth-degree assault, menacing, and extortion all occurred as defendant was strangling M,2 so they necessarily were part of the “same continuous and uninterrupted course of conduct.”

2 The merged fourth-degree assault conviction is based on defendant hitting M’s head to the floor while strangling her and causing M injuries from repeated strangulation. The menacing conviction is based on defendant telling M as he strangled her that he could kill her. The extortion conviction is based on defendant telling M as he strangled her that he would harm her if she “fuck[ed] with [his] freedom.”

Nonprecedential Memo Op: 352 Or App 689 (2026) 693

It follows that it was error to impose the sentences for the Group II sentences consecutively to the Group I sentences based on their not being part of the same continuous and uninterrupted course of conduct. As to the extortion count, however, the court also imposed a consecutive sentence based on “different harms,” as permitted by ORS 137.123(5)(b), and defendant does not challenge the alternative basis. We therefore conclude that it was error to run the sentences for fourth-degree assault (Count 11) and menacing (Count 13) consecutive to the sentences for strangulation (Count 5) and attempted second-degree assault (Count 6), but we do not hold as such as to the sentence for extortion (Count 14).

With regard to the menacing count, we recognize that defendant did not preserve his claim of error as to that one count, due to confusion caused by a typo in the date in the charging instrument (which suggested that the menacing occurred 10 days later than the other crimes). In these unique circumstances, we conclude that counsel’s mistake based on the typo did not rise to the level of invited error and that the error as to the menacing count is plain. See State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (requirements for plain error). We further choose to exercise our discretion to correct it, primarily as a matter of judicial efficiency , given that defendant would inevitably make the same argument on resentencing if we did not address it now, and defendant’s sentences have already been reviewed twice.

That leaves the sentence for coercion (Count 16), described above as Group III. We conclude that the sentencing court did not err in imposing a consecutive sentence for coercion. After committing the offenses in Groups I and II, defendant fell asleep, woke up the next morning, and committed the act of coercion. The coercion was thus separated from the other offenses by a significant temporal break. See State v. Wolfgang, 278 Or App 781, 792-93, 379 P3d 759, rev den, 360 Or 465 (2016) (affirming a finding that two assaults separated by a 15-minute break were not a continuous and uninterrupted course of conduct). And defendant did not spend that time engaged in acts in furtherance of a single criminal objective. See, e.g., State v. Tooley, 265 Or 694 State v. Rychard

App 30, 43, 333 P3d 348, rev den, 356 Or 575 (2014) (explaining that two murders committed 12 hours apart could be part of a continuous and uninterrupted course of conduct, where the defendant spent the 12 hours acting “in service of his overarching objective” to kill both victims and acted as quickly “as practicably possible” (emphases omitted)).

Finally, we reject the state’s argument that the error in imposing consecutive sentences for fourth-degree assault (Count 11) and menacing (Count 13) was harmless. It is true, as the state points out, that changing those two sentences from consecutive to concurrent would not, in and of itself, shorten defendant’s total prison time, given the consecutive sentences for extortion (Count 14) and coercion (Count 16) that we have not disturbed. But the state’s argument fails to account for the shift-to-I rule, which we address next. Because the sentencing court also made a shift-to-I error, as discussed in the next section, the consecutive sentencing error was not harmless.

Shift-to-I Rule. The shift-to-I rule applies when a defendant is sentenced for multiple felonies in the same proceeding . The defendant’s true criminal history score is used in assessing the gridblock for imposing the sentence on the primary offense and any concurrently imposed sentences. OAR 213-012-0020(2)(a)(A). For additional offenses for which consecutive sentences will be imposed, the court is required to use the criminal history score “I.” OAR 213-012-0020(2) (a)(B); State v. Mayes, 234 Or App 707, 709 n 1, 229 P3d 628, rev den, 348 Or 669 (2010). The shift-to-I rule does not apply to consecutive sentences imposed for crimes that stem from different criminal episodes. State v. Monro, 256 Or App 493, 495, 301 P3d 435, rev den, 254 Or 148 (2013); Orchard v. Mills, 247 Or App 355, 358, 270 P3d 309 (2011), rev den, 352 Or 33 (2012). In this context, a “criminal episode” means “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.” ORS 131.505(4); see State v. Taylor, 293 Or App 460, 465, 428 P3d 939 (2018) (the definition provided by ORS 131.505(4) applies to the shift-to-I analysis). We review for legal error. Taylor, 293 Or App at 461.

Nonprecedential Memo Op: 352 Or App 689 (2026) 695

As explained above, defendant’s extortion of M was part of the same “continuous and uninterrupted conduct” as his other crimes, excepting coercion, and directed to the same criminal objective. The court therefore should have employed the shift-to-I rule after deciding to run the sentence for extortion consecutive to those for other crimes. That is, it should have sentenced defendant for extortion (Count 16) using grid block 7-I rather than grid block 7-A, which would have resulted in a shorter total prison sentence.

Remanded for resentencing; otherwise affirmed.